Tuesday, January 15, 2008

Don't tread on Suhr

Over at his blog, Michael Plaisted is apoplectic about the video interview that I did with WMC. He says that it is "propaganda" and a "comedy star-turn." I guess he didn't like it but I don't know why because he doesn't respond to a single thing that I said, other than to suggest I mischaracterized Thomas v. Mallett (I dare him to back that up) and that, if the people think the court gets the constitution wrong, they ought to just shut up and accept what they have been told.

Mike thinks that I just must be not only wrong but somehow comical, because 1)WMC asked me to do it and 2)because, after 16 years as a litigator at one of the largest firms in the country and ten years as general counsel at an international manufacturing concern (during which time I consistently taught at the undergraduate and law school levels), I just recently decided that I wanted to devote full time to teaching and scholarship.

Maybe my observations were wrong (certainly there are smart lawyers and academics who see things differently), but you wouldn't know it from what Plaisted wrote.

I am a bit more put off, however, by his attack on one of my student for some work that was undertaken on his own without, as far as I know, direction or compensation from anyone. In describing the state supreme court's decision in a State v. DuBose, Daniel Suhr wrote that the Court "significantly departed from its own prior precedent and that of the U.S. Supreme Court."

Lawyer Plaisted (a UW grad, I think) says Daniel is wrong:

... I happen to be very familiar with another one of the cases identified by Suhr as "failing to defer to the U.S. Supreme Court". In fact, the case is exactly the opposite – getting the Wisconsin case law in line with the U.S. Supremes – not the other way around.

According to Plaisted, the DuBose Court "makes it clear that the Wisconsin Supreme Court was changing from its previous standards on show-ups to comport with U.S. Supreme Court cases on the same subject; hardly ignoring or in conflict with federal law."

He offers no support for that assertion, so let's examine it here. If you don't want to read the legal stuff that follows, the takeaway is that Plaisted's characterization of DuBose is, I don't know what else to say, bizarre. It's a bit like saying that, if the Wisconsin Supreme Court decided to abandon the rule of Brown v. Board of Education in interpreting the state equal protection clause and return to the "separate but equal" rule of Plessy v. Ferguson, it would be getting in line with the U.S. Supremes (the 1896 version.) (The Supremacy clause would prohibit such a return in real life, but you get the point.)

Here's how I see it:

In DuBose, the the state Supreme Court, in the most generous interpretation, abandoned the U.S. Supreme Court's (Biggers and Braithwaite) and its own(Wolverton)current standards for determining the admissibility of out-of-court identifications in favor of a earlier standard that, by the court's own admission, the US Supreme Court had moved away from. Current federal practice was not to exclude identifications resulting from suggestive procedures if they are, nevertheless, reliable under the totality of the circumstances. The DuBose court moved to a rule that would exclude them unless they were necessary. The Court did this in response to studies cited by the Wisconsin Innocence Project that are claimed to show that eyewitness identification is unreliable.

That this was a departure from the current Supreme Court practice is clear from reading DuBose itself. The Court characterized earlier SCOTUS decisions as focusing on whether the suggestive identification was necessary (did the police have to do it that way?) rather than whether the resulting identification was unreliable (is it likely that the eyeball witness pointed at the wrong guy?). Justice Crooks, writing in DuBose, conceded that the rule had changed: "After the Supreme Court's decisions in Biggers and Brathwaite, the test for showups evolved from an inquiry into unnecessary suggestiveness to an inquiry of impermissible suggestiveness, while forgiving impermissible suggestiveness if the identification could be said to be reliable."

But, Justice Crooks wrote, the substantially similar words in the Wisconsin Constitution ought to be read to require more:

Based on our reading of that clause, and keeping in mind the principles discussed herein, the approach outlined in Biggers and Brathwaite does not satisfy this requirement. We conclude instead that Article I, Section 8 necessitates the application of the approach we are now adopting,[18] which is a return to the principles enunciated by the United States Supreme Court's decisions in Stovall, Wade, and Gilbert.

In other words, we are going to abandon what the Supreme Court is currently doing and go back to what we think it used to do. Whether this is a good rule (or whether it really is what the US Supreme Court used to do) is something we could discuss, but DuBose was not simply getting in line with the U.S. Supreme Court.

But you don't have to take my word for it. You can rely on what Justice Louis Butler said about DuBose in another case (Knapp which we will get to in a moment). After maintaining that the state Supreme Court has the authority (and it does) to interpret cognate provisions of the Wisconsin Constitution differently than the U.S Supreme Court reads their federal counterparts, he wrote:

Our recent decision in State v. Dubose, 2005 WI 126, __ Wis. 2d __, __ N.W.2d __, fits this framework. In that case, based in part on the extensive research on the inaccuracy of eyewitness identifications, this court relied on the Due Process Clause of the Wisconsin Constitution to conclude that showup identifications are inadmissible unless, based on the totality of the circumstances, otherwise necessary. Id., ¶¶29-34. Thus, we departed from the current federal law that centered on the reliability as opposed to the necessity of the showup. Id. (emphasis added.)

Plaisted has argued that Louis Butler is a smart and honest guy. Although I disagree with Justice Butler on many legal matters, I agree with this characterization. His defenders ought to be as candid and accurate as he was.

Mike doesn't talk about Knapp itself, but blogging lawyer Illusory Tenant does (and, yes, I said something nice about him on Jane Hampden's show; I enjoy his blog as much as I disagree with much that he [or she, how could we know?] says.)

But he wants to take issue with Daniel's characterization of the Knapp case which excluded physical evidence obtained as a result of a failure to Mirandize a suspect. (The officer asked him what he was wearing last night and he pointed to a sweat shirt on the floor that was ultimately found to be stained with the victim's blood.)Daniel wrote that the Knapp majority concluded that "Wisconsin's search and seizure clause, which is virtually identically worded, provides greater protection to suspected criminals."

IT's criticism is not, as Plasited's is, just flatly wrong. In fact, what he does is to shift away from what Daniel said to statements made by Charlie Sykes. He wants to say that the federal rule was not crystal clear and that is certainly so. But the implication that Daniel's characterization of the case is wrong ("overly simplified — if not misleading — account of his jurisprudence") misses the mark.

Let's go to the law.

As IT correctly observes (and as I said in my own white paper), the SCOTUS decision (Patane) that the Knapp court did not apply and which held that physical fruits of a Miranda violation need not be excluded had no majority opinion. Only three justices joined the plurality opinion, but, as Justice Butler wrote in Knapp, two concurring Justices agreed that "[a]dmission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an accused's coerced incriminating statements against himself." Maybe they'd see the Knapp facts differently (the officer in Knapp said he intentionally did not Mirandize) but they also said other things suggesting that introduction of reliable physical evidence ought not to be excluded because it was turned up in the course of an unwarned conversation.

The Siebert case, decided the same day, involved the introduction of testimonial evidence (the defendant's confession) following a Miranda violation.

There may be wiggle room between Patane and Knapp, but the court didn't take it. Again, we only need look at what the Knapp court itself said it was doing. It made it quite clear that it was basing its decision on Article I, section 8 of the Wisconsin Constitution and not on federal interpretations of the 5th Amendment. It did that explicitly and for good reason. A US Supreme Court decision, Michigan v. Long, makes clear that, if state supreme court are going to have their independent interpretations of cognate state constitutional provisions respected (New Federalism), they must make it clear that they are relying on state, and not federal, grounds. The Knapp court did that and so the state had no recourse to the US Supreme Court. It's decision excluding the evidence was final.

(It has no bearing on the issues here, but, just for the record, Knapp was convicted anyway.)

My point is that these are all legitimate issues and not the result of some WMC/talk radio/Federalist Society disinformation machine. The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth. They can do better than that.


Anonymous said...

Please read Suhr's characterization of Knapp again. First, he describes it as a Fourth Amendment case, but it's a Fifth Amendment case. While Knapp raised Fourth Amendment arguments in his resubmitted briefs they were not addressed.

(Incidentally, contrary to your claim that judges don't make rules, the fruit of the poisonous tree doctrine happens to be exactly that: a judge-made rule.)

Then Suhr describes Knapp's result as "arrogance" and an example of a "failure to defer to the U.S. Supreme Court." In this case, there exists no such requirement to defer to SCOTUS, nor is it even clear what SCOTUS requires under the circumstances, which is what I explained, and what you appear to agree with.

Do you seriously contend that Suhr's remarks demonstrate a fair -- or even honest -- representation of this case? I certainly don't, especially when his conclusions are based on an observation that raises the question of how closely he read it, if at all. He obviously didn't attend very closely to the SCOTUS decisions to which he claims Butler "failed" to defer, yet he portrays Butler as "arrogant"? Please.

The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth.

I sincerely hope you're not talking about me here. But, speaking of spinning from whole cloth, how about Suhr's representation of Kohn v. Darlington Community Schools: "Justice Butler, in dissent, says he would strike the statute down for violating his expansive reading of the federal and state constitutions' equal protection clauses."

Emphasis added. Now that is a fabrication from whole cloth. Butler "says" no such thing, and in fact his analysis is based on whether the substantive changes to the repose statute rescue it from the court's prior holdings in Kallas and Funk. So if there is such an expansive reading as Suhr believes, it belongs to the 1975 and 1989 versions of the court, long before Butler appeared on the scene.

As for Charles J. Sykes, Suhr cited him as a source, not me. It's not my problem Suhr's attitudes appear to vibrate in consonance with Sykes's errors.

Mike Plaisted said...

FYI - From my blog.

UPDATE: Rick Esenberg noticed this post and, besides not getting how unintentionally funy his WMC video is, purports to get all legal on my ass about my comments regarding the lead paint case (Thomas v. Mullet) and the Dubose case.

Esenberg "dares" me to back up my claim that he mischaractorized the lead paint case. Here goes: In the video, Esenberg says "suing an entire industry, although not unheard of, has been very limited to particular circumstances that really were not clearly present in the lead paint situation." There is a reason that he uses weaselly qualifiers in his statement -- "really were not clearly present" -- because he knows that the circumstances really and clearly were present. The Thomas decision was firmly rooted in cases against another industry that was spreading poison anonymously, knowing it to be poison -- that being the drug companies that brought us DES, a cancer-causing drug given during pregnancy, to supposedly prevent miscarriage, an industry, no doubt, Esenberg would also be defending. The only difference the Court in Thomas saw in the two circumstances was that there was someone else to sue -- namely, the poor landlord that used the poison paint.

Certainly, the opinion by Justice Butler had to explain much of the history of the lead paint industry -- this is the sort of necessary extrapolation that Suhr criticizes as "extensive citations to non-legal authorities" and "moral outrage substituted for sound legal reasoning" in Thomas. Justice Butler can't help it if the Court had to take a long time explaining the history and it's reasoning so that even he could get it. It is not surprising that he and Esenberg still pretend not to -- at least for the WMC's purposes.

Now that I have "dared" to take Esenberg up on his challenge, I can't wait to see what the consequences are.

As far as Dubose is concerned, Esenberg compares the Wisconsin Supremes trying to get in line with Stovall the equivalent of "the Wisconsin Supreme Court decided to abandon the rule of Brown v. Board of Education in interpreting the state equal protection clause and return to the 'separate but equal' rule of Plessy v. Ferguson". Well, no, although the radical right-wing of the U.S. Supremes could get there themselves any time now. The few cases that came after Stovall did not in any way overturn or reinterpret the Stovall language -- they were dealing with other suggestive IDs, such as those in a courtroom, etc. The Dubose court recognized as such:

"The Court, attempting to follow the 'totality test' developed in Stovall [in Simmons], determined that the in-court identification was not tainted. However, 'the exclusionary effect of Stovall had already been accomplished, since the prosecution made no use of the suggestive confrontation. Simmons, therefore, did not deal with the constitutionality of the out-of-court identification procedure. The only question was the impact of the Due Process Clause on an in-court identification that was not itself unnecessarily suggestive.' Brathwaite, 432 U.S. at 121-22 (Marshall, J., dissenting)."
Throughout the Dubose decision, the Court states that they are developing the new rule "with Stovall as our guide." "We adopt standards for the admissibility of out-of-court identification evidence similar to those set forth in the United States Supreme Court's decision in Stovall," the Court said, and so they did. This is hardly a "significant departure from...prior precedent...of the U.S. Supreme Court", as Suhr claimed in his hit-job. It is rather a fairly commendable attempt to follow the precedent of the U.S. Supremes in a way that gives it real meaning. If Esenberg and Suhr don't like the Court doing that -- which is, after all, their job --let them complain about it directly rather than claiming the Wisconsin Court is going off on wild tangents.

Esenberg complains that "these are all legitimate issues and not the result of some WMC/talk radio/Federalist Society disinformation machine." Well, I don't know where I'd get that idea, with the WMC propagating his video, talk radio and blog wing-nuts using the video and Suhr for anti-Butler fodder and the Federalist Society doing god knows what. Esenberg knows that he is helping to lay the groundwork for the scorched-earth WMC campaign to come. The line between his sainted notion of "education" and propaganda is a thin one, and he knows what side he's on.

Anonymous said...

"They can do better than that." - Esenberg

From reading the original posts and the comments here I conclude they can't do better.

Rick Esenberg said...


Nothing you say here changes the basic facts. SCOTUS went away from Stovall and followed the Biggers-Braithwaite approach. Justice Crooks realized that he was departing from that approach in DuBose itself as illustrated by the language I cited. That's why he based his decision in Article I, section 8 of the state constitution. He had to.

Justice Butler himself recognized that was the case in Knapp. Your characterization of the case is just wrong.

As for Mallett, I used the phrase that it was not "unheard of" because it was not. Collins did it. Once. 21 years before. That's why I also used the phrase "very limited."

As for whether thje Collins circumstances were present in Mallett, no other court had ever concluded that they were and the "history" history of the lead paint industry and physical properties of lead paint pigments that the majority relied on were highly disputed. The majority took them as facts (not inappropriate at the summary judgment stage) but then did not require them to be proven below as a condition of imposing collective liability.

I'll respond to IT but I have to get ready for class first.

Michael said...

I think a whole bunch of stuff just went over my head.

Anonymous said...

Here's the haiku version, elliot: Someone called Daniel Suhr heaved forth a fat slab of baloney, and now it's being sliced and diced.

Mike Plaisted said...

OK, professor. SCOTUS did not go "away from Stovall" when it decided Biggers & Braithwaite -- both cases clearly try to effectuate what Stovall meant within the facts of the individual cases. Stovall remains the seminal case, and the protections afforded in that case are what the SCOW was trying to effectuate. Both may be questionable, but which is more clearly wrong: my statement that Wisconsin was trying to comport with SCOTUS precedent OR Suhr's claim that the Dubose case represents a significant departure from prior precedent of the U.S. Supreme Court? How can you have such a "significant departure from prior precedent" if you are in word and deed trying to follow it and make it live? It is something that you only see if you want to see it.

Anonymous said...

It looks like Plaisted and Illy T would not give the studious Mr. Suhr a very good grade if he was their student.

I would certainly fail this course. You guys lost me somewhere around the first legal precedent.

Display Name said...

3rd, in his radio interview, the Professor said that kids do not get extra points for sucking up. That's why I asked the Professor to tell me if he thought Daniel had a good set of references in his paper. He had, uhm, the Prof, two Sykes, and the WSJ.

Rick Esenberg said...

Well, Mike. I guess Justices Crooks and Butler saw it because they did say they were departing from federal law. I guess they and me and Daniel Suhr all must be wrong.

Terrence Berres said...

Mr. Plaisted says of the 'Thomas' opinion that "Justice Butler can't help it if the Court had to take a long time explaining the history and it's reasoning so that even he could get it." He explained it in such a way that the State Bar's Litigation Section read it as findings of fact in the Section's original rationale for opposing a bill to undo the effect of the 'Thomas' decision.

Anonymous said...

I feel compelled to make a short comment here.

Perhaps Esenberg's political blogging has led certain commentators to believe that he allows his legal and political views to taint the minds of impressionable law students. Of course, I admit, as I am sure Esenberg would admit as well, that personal beliefs can color one's interpretation of the law and have an impact, at times, in the presentation of material. (This is no doubt equally true for liberal and conservative professors.)

But, having taken two classes from him, I can say that Esenberg is not only a fine law professor but also an extremely fair-minded one. In fact, Esenberg's style is more conversational than dictatorial (“how might a plaintiff's lawyer argue this?” or “how might a defense attorney argue that?”). It is simply not true that Esenberg enters the classroom and begins ranting on his favorite controversy of the day.

Ironically, in my class, the sole guest lecture was given by Chief Shirley, and, despite my personal disagreement with Esenberg on a number of issues, including the white paper out of which he is getting impressive mileage, I assure readers that final grades were not positively correlated with any particular political perspective.

Esenberg appreciates thoughtful debate. The problem is that he is often more thoughtful than those with whom he debates. I should note, however, that this does not change the fact that he is wrong about everything. Well…a lot of things.

By the way, the WMC video is hilarious as a matter of law. I particularly liked the comment that companies might leave Wisconsin on account of the med-mal cap being struck down and risk contribution theory being extended to the detriment of a handful of pigment manufacturers.

Perhaps restrictions on freedom of contract can somehow be abolished under the new rational basis with teeth standard applied in Ferdon. This way Wisconsin can retain the optimal business climate for WMC's constituency.